The real purpose of the assignment of the mortgage of Bushrod Buck, made by Shaw to the defendant, on the 29th of September 1843, is quite obvious; and the instrument ought to be so construed as to secure that object, if it may be, consistently with the rules of law. The equity *514of the case is obviously with the defendant, upon the question whether his note against Buck as principal, and Shaw as surety, shall constitute a lien upon the premises sought to be discharged, before the defendant can be required to release the mortgage assigned to him by Shaw. By the facts stated in the bill, it appears that the defendant, on the 13th of September 1839, lent to Bushrod Buck $4000, upon his note, with Shaw as surety for the payment of the same ; that to secure Shaw for thus becoming surety for Buck, he received the mortgage deed of October 7th 1839, the subject of the present bill, and what the plaintiff seeks to have released.
The debt to the defendant remaining unpaid on the 29th of September 1843, Shaw assigned the mortgage to him, upon certain stipulations therein contained. The object seems to have been, that the defendant should receive from Shaw a transfer of the mortgage, and thereafter rely solely upon that, and make no claim on Shaw personally for the payment of the note signed by him. All this is obviously enough expressed in the assignment. And, in point of fact, the defendant at once entered into peaceable possession, for foreclosure of the mortgage, under his assignment. But it is now insisted, that whatever may have been the intention of the parties, they have so unskilfully and irregularly executed this instrument of assignment, as to have defeated that intention ; and that the defendant, while he supposed he was substituting the security of the mortgage on real estate of Buck, for the personal security of Shaw, has in fact discharged both, and is now left without security for his debt of $4000. That the defendant intended no such result, as we have already stated, is quite obvious. Is such the legal effect of the assignment?
It is contended that it is so, and that the mortgage to Shaw is fully discharge^, because, from the very terms of the mortgage, it was to be void, “ if said Buck shall save said Shaw from any trouble, cost or expense, by reason of signing said note ” as surety; and it is alleged that Shaw has been saved from all trouble, cost and expense therefor, and that, by force *515and effect of the arrangement made by the defendant with Shaw, he could be no further damnified. It is true that in the assignment from Shaw to the defendant, it is recited that in consideration of the defendant’s agreeing to release him from all liability other than the use of his name in the collection of the note secured by this mortgage, he assigns to the defendant all his right and interest and claim to the mortgaged premises. This instrument is not signed by the defendant, though accepted by him, and to some purposes assented to by him. But we do not think it necessarily is to have the same effect as a release, under his hand and seal, to Shaw, might have had. There might have been a technical release to Shaw, the effect of which, perhaps, could not be avoided. But in giving a construction to this instrument of assignment, when called upon to declare that on its face it has discharged all liability on the part of Shaw, we may take into consideration the entire language and purpose of the instrument. And, in so doing, we are satisfied that it was only a substitution of the mortgage of real estate, for the personal liability of Shaw, and intended to be effected through the name of Shaw. Indeed, the use of his name, in the collection of the note, was distinctly stipulated for in the assign ment. It contemplated the use of it, so far as was necessary to perfect the lien upon the real estate. The note has not been paid either by Buck or Shaw. It is still due, and may be enforced against Shaw, unless discharged by the recital in the assignment. We think that the recital is not to be so construed as to defeat the whole effect of the assignment; that it was only a qualified discharge, to the extent compatible with the continuance of the security by mortgage ; and that it would be inconsistent with the principles of equity to require the defendant to execute a release of the mortgage assigned to him by Shaw, before the payment of the note of $4000, and any interest that may be due thereon. That there was a lien upon the premises, for the debt to the defendant, is no surprise upon the plaintiff; and that it was made known to him at the time he first became interested in this *516estate, is apparent from the language of the mortgage deed of Buck to Henry Marsh, of the 15th of April 1842, and by Marsh assigned to the plaintiff on the 27th of October 1842; which mortgage deed was in terms made subject “ to a prior mortgage to Daniel Smith,” the present defendant. Perhaps this has no legal effect upon the question in issue ; but it seems strongly to show that all parties understood the mortgage to Shaw was a lien upon the property, to secure the note to the defendant.
The result, therefore, is, that the plaintiff will be entitled to redeem the premises upon paying the amount due to the defendant upon the note described in the mortgage assigned to him by Shaw.